Oregon Personal Injury Lawyer Blog

Death does not extend the time to file a personal injury lawsuit against a public body, held Oregon's Court of Appeals. In yesterday's opinion, the court addressed the interplay between the statute of limitations for lawsuits against public bodies with the statute that keeps alive personal injury claims despite the injured person's death. These are called "continuation actions," because the claim for injury continues after the death of a person.

The source is ORS 30.075(1), which allows the personal representative of the estate to continue or start a lawsuit against the wrongdoer "if the decedent might have maintained an action, had the decedent lived[.]" The confusion came from the last sentence, which requires that the lawsuit be filed within the general two year statute of limitations (ORS 12.110), "or within three years by the personal representatives if not commenced prior to death."

Public bodies have their own statute of limitations - not the general SOL -- even though it also establishes a two-year deadline. ORS 30.275(9) says that its two-year time deadline applies, regardless of any other "statute" of "limitation." In yesterday's case, the lawyer filed the lawsuit 14 days after the two-year anniversary of the injury. He argued that the law allowing up to three years to file continuation actions is not a statute of "limitation." Instead, he urged, it established an extra year, kind of like when minors get extra time to file a lawsuit.

Oregon's Court of Appeals disagreed. The three-year deadline for continuation actions is, in fact, another statute of limitations, which is trumped by the special law for public bodies.

So, when you have a personal injury claim against the government, you can't let death get in the way of filing within two years.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Last week, Oregon's Court of Appeals allowed a family to subpoena records through the probate court to help pursue a wrongful death case. Why is that significant? Because the nursing home thought it could get away from the courts entirely with the arbitration agreement that it buried in the admission papers. I've tried this tactic in the past, but this is the first I've seen the technique written about by an Oregon court.

In Assisted Living Concepts, Inc. v. Fellows, the family alleged wrongful death against Assisted Living Concepts (ALC). They claimed that ALC killed Dorothy Drury because of lack of adequate monitoring and fall-prevention measures. The heirs opened a probate case and then filed a regular lawsuit. Assisted Living Concepts, (ALC) moved to compel arbitration. I've written about arbitration before. I think it's dangerous when "repeat players" go against "one-time players," because arbitrators know if they want to continue to get work from ALC and its lawyers, then they better not award too much money.

As it turned out, the trial court decided to keep the case. But ALC appealed that order, which effectively would freeze fact-finding for another couple of years. Only then did the Estate of Drury use a probate court subpoena to attempt to get records. It is critical to get the records and identify witnesses as soon as possible. Especially in places like nursing homes, where many of the low-paid workers come and go. ALC then challenged the technique of using the probate court to subpoena information. The Court of Appeals threw out the appeal on procedural grounds.

So, the probate court route to obtain and preserve evidence remains viable. I've used it in the past, BEFORE ever filing a lawsuit. The job of the probate court is to identify, gather and disburse or manage assets. I think it is very appropriate for lawyers to use the probate court for exactly that purpose: identify whether there is a lawsuit worth pursuing. This technique is appropriate not only for wrongful death cases, but also for living people whose affairs are in probate, such as a minor, or someone with traumatic brain injury, or someone with dementia.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Oregon's Court of Appeals ruled that there are circumstances when a doctor does not have a right to participate, or "intervene," in a lawsuit alleging he malpracticed. In Dixie Taylor v. Portland Adventist Medical Center, a woman went to the emergency room, was sent home, and died. Her loved ones sued the hospital for medical malpractice, not the two doctors involved in the decision to send her home.

The doctors and hospital were in a bit of a pickle. The doctors were employees of the hospital. But, if the hospital has to pay a judgment because of the doctors' malpractice, then the hospital had a right to reimbursement from the doctors. (This right is called "indemnity.") The hospital could have sued the doctors in the same lawsuit, but decided not to. Certainly, the hospital did not want the jury to witness the family AND the hospital arguing that the doctors screwed up.

The doctors said they wanted to be in court to defend their professional reputations, even though they were not named as defendants.

Oregon's Court of Appeals held that Oregon's rules provide two paths to intervene in a lawsuit. One is as a matter of right: when the jury will make a decision that legally binds you. The other is permissive intervention, when the person has some good reasons to be in the lawsuit, but the there are good reasons to exclude the person. All agreed that this was a permissive intervention situation because even if the jury finds for the family of the woman who died, that decision does not bind the doctors who are not parties to the lawsuit. In other words, if the family wins and the hospital later sues the doctors for reimbursement, then the doctors can still argue that they were not negligent, despite what the first jury ruled.

The court found that the doctors had good reasons to participate in the lawsuit. Nevertheless, it upheld the trial judge's decision to exclude them for the following reasons:

• The hospital was highly motivated to win the lawsuit. If it wins, then the doctors have nothing to worry about.
• Whatever the outcome, the verdict would not prejudice the case between the doctors and the hospital.
• Under our system, the family gets to decide whom to sue.
• If there were three defendants in the case, with three defense lawyers and many more expert witnesses, then the family would suffer at trial. Three defense lawyer would give opening statements; three defense lawyers would cross-examine witnesses; three defense lawyers would deliver closing arguments. The case would become much more complicated, more confusing for the jury, AND much more expensive.

Although it may sound harsh that the doctors could not participate, one wonders if they really wanted to be in the courtroom. Instead, I suspect that the insurance company for the hospital wanted to have all three defense lawyers there to try to overwhelm the lawyer for the family.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

Last week, the Oregon Court of Appeals confirmed the one-beneficiary-per-cap interpretation of the Oregon Tort Claims Act. In Stephanie Miller v. Tri-County Metropolitan District, a Tri-Met driver killed Austin Miller with his bus, and his mom filed a wrongful death lawsuit.

The wrongful death statute permits lawsuits to recover the losses of certain beneficiaries named in the statute. Austin's mom and dad were the only statutory beneficiaries. The wrongful death statute requires a personal representative be named to pursue the claims of all beneficiaries.

Tri-Met is a public agency, and the Oregon Tort Claims Act (ORS 30.260 - 30.300) controls claims against it. The OTCA sets limits for how much one can claim against a public agency. Tri-Met argued that there is a single cap for a single death, regardless of the number of grieving heirs. At the time the cap was $200,000. (It's more now.)

Oregon's Court of Appeals disagreed. It held that the wrongful death statute doesn't provide for a single cap for a single death. Instead, all of the statutory heirs have separate claims, and the wrongful death statute merely requires they all be made in one lawsuit by one personal representative. So, in this case, the claim for mom's loss was separate from the claim for dad's loss. Consequently, two caps were in play, meaning the total cap was $400,000.

We'll see if Tri-Met wants to appeal this to the Oregon Supreme Court.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Radiologists are among the doctors most liable to claims of medical malpractice, according to the authors of a study entitled, Spectrum of diagnostic errors in radiology. The authors surveyed other studies, and fund an average error rate among radiologists of "around 30%," with missed cancer among the most common errors.

The authors found four main reasons for radiologist negligence: (1) not seeing the cancer or fracture, (2) misinterpreting what was seen, (3) failure to suggest the next appropriate step, and (4) not communicating with the referring doctor in a timely and appropriate way.

Missing the lesion, entirely, sometimes occurs when the doctor is focusing on something more eye-catching on the image, or because the doctor started with a preconceived notion of what he or she is looking for. Even without distraction, 30% to 70% of breast cancers found on a later mammogram can be seen on an earlier mammogram, according to a bulletin issued by the American College of Radiology.

The article discusses that a radiologist's job is not finished by the mere issuing of a report. If the radiologist finds something not expected or something requiring urgent attention, he or she should communicate directly with the physician. Also, if the radiologist sees something that is not clear or inconclusive, then the radiologist should report on what other procedures might be performed to achieve a more reliable diagnosis.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

An Oregon jury awarded $821,000 for the wrongful death of Ruby Larson against the Pheasant Pointe Retirement and Assisted Living Residents and its Parent company. The family entrusted their beloved Ruby to the assisted living facility. The nursing home knew that Ruby had dementia and wandered off, but kept letting her do it. A young boy found Ruby's dead bones.

Too often, Oregon's assisted living facilities are bad. Oregon is among the worst. From my cases against them, I have seen how out-of-state owners run some facilities with too few staff. When their employees complain or try to make the facilities comply with the law, the company fires complainer.

In a nutshell, here is the problem. Some facilities promise everything to potential customers. Pheasant Point marketed itself as a place for people with memory problems. In cases I've had against other places, facility directors get bonuses based, in part, on how full the facility is. They get bonuses for keeping costs down. So, the pressure from out-of-state masters is to keep the number of residents high and number of staff low. Because Oregon does not have sufficient resources to police the facilities, too often assisted living facilities get away with it.

I happened to see the lawyer who represented the family in court on Monday. She looked extremely preoccupied. Now, I know it was because the jury was deliberating. Thank goodness for lawyers like Jane Paulson, who fight for clients like Ruby's family. Only when the costs of neglect become too high will these big for-profit companies consider hiring sufficient staff make good on the promises they make to care for and about people.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

It is sad, tragic and depressing. A Medford, Oregon mom decided to drive her son and, we believe, 7 other young people. Four of the nine occupants did not wear seat belts. According to one witness, the car in front was driving slowly. When it turned off Upper Applegate Road, the mom hit the gas, up to 70 mph in a 45 mph zone. Because the people in the back were not belted, she goofed off by swerving to jostle them around. She lost control; the SUV left the road, and crashed.

Two people died: her son and Faith Vock, an 18 year old girl enjoying her summer with her uncle. Two others were hospitalized with serious injuries. The rest of the young people avoided major physical injuries but are traumatized for life.

Goofing off while driving often leads to irreversible and irreparable tragedy. We see it with teenage drivers, young drivers, and drivers impaired by alcohol or drugs. The Medford, Oregon tragedy shows that even middle-aged women can lose control when driving is used for amusement. How many times must it be said: "safety first."

The tragedy also points out how important seat belts are. The two young people that we lost were not belted. In the past, I have argued to the State Legislature that there ought to be a law requiring that drivers not transport people unless each one is in a seatbelt (HB 2536 - 2007). Safety advocates lost that argument to those who bemoan "the Nanny State." Maybe we should consider reviving that bill.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The Oregonian reported the settlement of a lawsuit against Gresham's Golden Star Restaurant & Lounge of at least $1.35 million dollars because it over-served alcohol to the drunk driver who killed two young girls. According to a witness, the bar served the drunken driver four to six drinks. The woman was not standing straight (swaying) and even flashed her bra to the entire bar.

The drunken woman drove on the wrong side of the road when she smashed into the two 21 year olds returning home from a birthday party. The grief-stricken parents (the Shaddixs and the Blancks) sued and had the courage to reject any settlement that included a confidentiality provision.

Despite the fact that everyone knows better, people still drive drunk, people still let others drive drunk, and people serve alcohol to visibly intoxicated people who they know will likely drive while intoxicated. The lesson from this case, and the Linda Cunningham case, is that people who make a living serving alcohol (and social hosts, too) are responsible for the damage they cause when they get people drunk.

For information on your legal rights when injured by a drunk driver, see this summary of Oregon Law.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In a fascinating ruling that discusses Oregon law back to 1857, the Oregon Court of Appeals held that former TV personality Ken Ackerman may keep his $1.4 million dollar medical malpractice judgment. However, the court changed the trial court's ruling on who must pay it.

Mr. Ackerman had back surgery by a doctor employed by Oregon Health & Science University (OHSU) and OHSU Medical Group. The doctor punctured Mr. Ackerman's spinal cord, leaving him in constant pain, and with a loss of fine motor skills in his right hand. Also, he lost most sensitivity to hot and cold on his left side.

Because OHSU is considered a governmental entity, special laws apply that purport to limit its liability $200,000. Whether those laws work to limit liability depends on whether Mr. Ackerman could have brought the lawsuit before our 1857 constitution guaranteed to all of us a "remedy by due course of law." If a law made after 1857 tries to take away our rights, then it is unconstitutional.

Oregon's Court of Appeals said that because Mr. Ackerman could not have sued the State before 1857, and because OHSU is considered like the state, then the limit as against OHSU is okay.

The Court then looked at whether the OHSU Medical Group is like OHSU, and gets the benefit of the limitation. On the record before it, the court found that OHSU Medical Group was, again, an "instrumentality of the state," which could be limited. (One wonders if a different record based upon the activity at issue could lead to a different result.)

The back surgeon, however, was not considered protected under the State's umbrella. The laws that purported to protect him from additional liability were held to be unconstitutional.

Consequently, the Court of Appeals said Mr. Ackerman could collect $200,000 from OHSU, $200,000 from OHSU Medical Group, and $1 million from the back surgeon.

There are many more issues involved in this important case, and defendants will seek review by the Oregon Supreme Court. So, as they say in television, "stay tuned."

Jeff Merrick, Oregon Trial Attorney
503-665-4234

For years, Oregon children have been killed and have suffered Traumatic Brain Injury because they fell from windows. Second story windows are high enough, as I sadly learned while suing a landlord and Portland property management company. In the Portland area, alone, more than a dozen children go to hospitals for window fall injuries each year. Oregon Trauma Registry data indicate a total of close to 50 child window fall injuries per year.

The legal cases I had involving children falling from windows caused me to lead a legislative effort to pass a law requiring landlords to offer window guards to tenants with small children. That law did not pass, but a new Oregon building code is a step in the right direction.

The new regulation became effective February 1, 2010. It is Oregon Residential Specialty Code § R613.2. It applies to windows more than 72 inches above the ground below and offers two protections:

• First, windowsills must at least 24 inches above the floor.
• Second, the windows may not open more 4 inches unless the windows a provided with window guards that meet a certain national standard, called ASTM F 2090-08.

This is an important first step for a couple of reasons. First it acknowledges the serious and continuing problem of children falling from windows. Every year, when the weather gets hot, kids start dropping out of windows. You can count on it.

Second, the window guard requirement might cause stores to stock window guards. Right now, guards are very hard to find. You can see how window guards work at the Legacy Children's Hospital Safety Store, which is borrowing my own window guard displays. The knowledgeable and kind women who staff the store can help you order window guards and other safety devices.

I trust the word will get out to residential homebuilders: Make places safer to prevent tragedy!

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In Oregon, if the employer pays for workers' compensation insurance, then the worker may not sue the employer when he or she is hurt on the job. This "exclusive remedy" provision does not apply if either (a) the employer does not have workers' compensation coverage or (b) someone else -- or something else -- was at fault.

For example, we sued a printing press manufacturer for making a dangerous machine when a worker suffered a severe arm injury. The manufacturer was not the employer, so it was not immune from suit under Oregon law. A more typical example is someone hurt in a car or truck accident while on the job. The worker can sue the other driver that caused the wreck.

But there are special issues to be aware of involving who may sue and who gets the money.

If the workers' compensation insurer pays benefits, then it has a right to get paid back out of any lawsuit proceeds. In fact, the insurance company can force you to decide whether to file a lawsuit. If you do not sue, then the insurance company can sue in your name.

There's a big difference to Oregon workers depending on whether the worker sues or the insurance company files the lawsuit.

If the insurance company sues in your name, then it controls the litigation. It decides when to settle. If the insurance company sues and settles the case, then it gets paid before the worker. The formula is that the insurer gets paid in full before the worker gets even one penny.

If the injured worker sues, then the formula for distributing the money is very different. First, the costs of the lawsuit are paid, including the attorney fees. Next, the worker receives 1/3 of the balance. Only then does the insurance company get paid back. So, if the worker sues, he or she jumps ahead of the insurance company. If there is still money left after paying back the insurer, the balance goes to the worker. The key Oregon law is ORS 656.576 to 656.596.

Another consideration is this. If the insurance company sues, will it really care whether the worker receives any money? Will it settle too cheaply, making sure it gets repaid and not worry about winning monetary compensation for your disability?

So the lesson? If you are seriously injured at work because of someone other than a coworker or something like a dangerous machine, then it is in your interest to sue and not let the insurance company file a lawsuit in your name.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Car accidents continue to kill more children than any other cause, according to a study published this week. The most recent data from Oregon are consistent with the new study results.

In this week's report, researchers studied deaths of children up to age 17 between 2000 and 2006 in San Diego County. Traffic accidents caused over 40% of the deaths, way more than the number two cause, asphyxia (22.7%). Penetrating trauma was the third leading cause of death at nearly 18%. (Fraga, et. al., Children at Danger, Injury Fatalities among Children in San Diego County, Eur J Epidemiol. 2010 Jan 19. [Epub ahead of print])

Oregon children also die, most often, because of traffic accidents. The good news from the Oregon data from 2000 - 2006 is rate of death from car accidents declined. We attribute that to better use of child safety seats, booster seats, and seat belts. We on the Safe Kids Legislative Committee spearheaded bill to update the law on booster seat usage in 2007, knowing that the data showed it would save lives AND reduces the severity of injury. Thanks to the leadership of Lake Oswego's Senator Devlin and Representative MacPherson, the bill got hearings and passed.

Oregon children can also thank committed safety professionals and volunteers who hold car seat clinics, educating parents on how to use safety seats and booster seats PROPERLY. In particular, Portland's Legacy Emanuel Children's Hospital,Tammy Franks and the Alliance for Community Traffic Safety have done a great job leading that effort. If you love a child, make sure the parents bring themselves and their seat to one of the clinics. Here's the schedule of upcoming clinics.

Jeff Merrick, Oregon Trial Attorney
503-665-4234